Jump to content

Freedom of speech in the United States

From Wikipedia, the free encyclopedia

This is an old revision of this page, as edited by Neilf420 (talk | contribs) at 06:21, 14 May 2007. The present address (URL) is a permanent link to this revision, which may differ significantly from the current revision.

File:Save Freedom of Speech.png
Citizens of the United States often treat free speech as a fundamental right and often a matter of patriotism.

Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocation of unpopular ideas that people may find distasteful or against public policy, such as racism, are generally permitted. There are exceptions to the general protection of speech, however, including the Miller test for obscenity, child pornography laws and regulation of commercial speech, such as advertising. Other limitations on free speech often balance rights to free speech and other rights, such as property rights for authors and inventors (copyright), interests in fair political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on Hate speech or fighting words), or the use of untruths to harm others (slander). Distinctions are also often made between speech and other acts, such as flag desecration, which may have symbolic significance.

Historical background

England

During colonial times, English speech regulations were rather restrictive. An English seditious libel law made criticizing the government a crime. According to the English Court of the Star Chamber, the King was above public criticism and statements critical of the government were forbidden. Chief Justice Holt, writing in 1704, explained the apparent need for the prohibition of seditious libel, "[i]f people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it." The objective truth of a statement in violation of the seditious libel law was not a defense.

Until 1694, England had an elaborate system of licensing. No publication was allowed without the accompaniment of a government-granted license.

Colonies

The colonies originally had different views on the protection of free speech. During English colonialism in America, there were fewer prosecutions for seditious libel than England, but other controls over dissident speech existed. Professor Levy said that each community "tended to be a tight little island clutching its own respective orthodoxy and . . . eager to banish or extralegally punish unwelcome dissidents."[citation needed]

The most stringent controls on speech in the colonial period were controls that outlawed or otherwise censored speech that was considered blasphemous in a religious sense. A 1646 Massachusetts law, for example, punished persons who denied the immortality of the soul. In 1612, a Virginia governor declared the death penalty for a person that denied the Trinity under Virginia's Laws Divine, Moral and Martial, which also outlawed blasphemy, speaking badly of ministers and royalty, and "disgraceful words."[1]

The trial of John Peter Zenger in 1735 was a seditious libel prosecution for Zenger's publication of criticisms of the Governor of New York. Andrew Hamilton represented Zenger and argued that truth should be a defense to the crime of seditious libel, but the court rejected this argument. Hamilton persuaded the jury, however, to disregard the law and to acquit Zenger. The case is considered a victory for freedom of speech as well as a prime example jury nullification. The case marked the beginning of a trend of greater acceptance and tolerance of free speech.

The First Amendment

In the 1780s after the American Revolutionary War, debate over the adoption of a new Constitution resulted in a division between Federalists, such as Alexander Hamilton who favored a strong federal government, and Anti-Federalists, such as Thomas Jefferson and Patrick Henry who favored a weaker federal government. During and after the Constitution ratification process, Anti-Federalists and state legislatures expressed concern that the new Constitution placed too much emphasis on the power of the federal government. The drafting and eventual adoption of the Bill of Rights, including the First Amendment, was, in large part, a result of these concerns, as the Bill of Rights limited the power of the federal government.

The First Amendment was ratified on December 15, 1791. The Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Alien and Sedition Acts

In 1798, Congress, which contained several of the drafters and ratifiers of the Bill of Rights at the time, adopted the Alien and Sedition Acts of 1798. The law prohibited the publication of "false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame . . . or to bring them . . . into contempt or disrepute; or to excite against them . . . hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States."

The law did allow truth as a defense and required proof of malicious intent. The 1798 Act, however, made ascertainment of the intent of the framers in regard to the First Amendment somewhat difficult, as some of the members of Congress that supported the adoption of the First Amendment also voted to adopt the 1798 Act. The Federalists under President John Adams aggressively used the law against their rivals, the Democratic-Republicans. The Alien and Sedition Act was a major political issue in the 1800 election, and after he was elected President, Thomas Jefferson pardoned those who had been convicted under the Act. The Act was repealed and the Supreme Court never ruled on its constitutionality.

In New York Times v. Sullivan, the Court declared "Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history." 376 U.S. 254, 276 (1964).

Censorship

Main article: Censorship in the United States

While personal freedom of speech is usually respected, freedom of press and mass publishing encounter some restrictions. Some of the recent issues include:

As of 2005, United States was ranked 44th of 167 countries in annual Worldwide Press Freedom Index by Reporters Without Borders. In the 2006 index the United States has fallen nine places and is now ranked 53rd of 168 countries.

Freedom of expression

File:Pleasedonotcontributesign.jpg
A sign prompted by the Pruneyard case

While freedom of expression by non-speech means is commonly thought to be protected under the First Amendment, the Supreme Court has only recently taken this view. As late as 1968 (United States v. O'Brien) the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s (Clark v. CCNV (1984)). It was not until the flag burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech.


Freedom of expression is often cited as the constitutional grounds for individuals to share files and information over P2P file sharing networks. The argument suggests that the type of music an individual listens to often shapes their lives and defines who they are, thus being a freedom of expression. Along with this proponents argue that Freedom of Expression outdates the copyright laws of the United States and superceeds them as a constitutional right. There has yet to be a Supreme Court case regarding individuals charged with file sharing.


Freedom of Speech on the Internet

The accesability and ease of information sharing as a result of the internet has raised many questions regarding the limitations of the Freedom of Speech. The internet is often used as an outlet for speech on contreversial topics and communication between multiple individuals. Citing the first ammendment, The United States Supreme Court case Reno v. ACLU struck down the 1996 Communications Decency Act, which outlawed, "indecent" online communication,and declared the internet a free speech zone with the same first amendment protection as books, magainzes, and movies. The government, according to the courts ruling could not restrict a persons access to words or images on the internet.

An issue with the freedom of speech on the internet is the accesability to graphic and explicit material such as child pornography. The 1973 Supreme Court case, Miller v. California allows the government to restrict obsenity. As a result the internet is monitered by Homeland Security in order to ensure that child pornography is prevented. However, internet sites are allowed to show pornographic material featuring of age adults with little restrictions.

In United States v. American Library Association (2003) the Supreme Court ruled that Congress can force public libraries to install blocking software on publically accessed computers. This essentially blocks internet sites that may feauture any number of pre-determined words or images. This is intended to protect children, however restricts adults use of the public libraries internet.

The Patriot Act is also a major aspect of regulation of the Freedom of Speech on the internet. The Patriot Act allows the government to monitor the internet for any suspicious discussions involving any threat to the United States.

See also

Retrieved from "https://en.wikipedia.org/w/index.php?title=Freedom_of_speech_in_the_United_States&oldid=130719758"